CERCLA reporting deadline on hold

Feeding operations await a ruling from the court of appeals to find out if they will be required to file reports of the release of hazardous substances, including ammonia and hydrogen sulfide. Photo by Tamara Choat

Last spring, the U.S. Court of Appeals turned the clock back to 2008, erasing the Environmental Protection Agency (EPA) Farm Exemption Reporting Rule from the books, setting November 15 as the planned reporting date for confined animal feeding operations (CAFOs).

But the ruling is currently under appeal, and according to the EPA, farms with continuous hazardous substance releases as defined by Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) do not have to submit their initial continuous release notification until the DC Circuit Court of Appeals issues its final decision.

"While it appears the reports will be required some time, producers may wait to file after the Court has entered its order, at which time we can expect EPA to provide a filing 'deadline.' We also expect that the EPA will utilize this additional time to bring more clarity to the emissions data and calculations producers should rely upon for determining whether they are subject to CERCLA air emissions reporting," shared Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law and Ellen Essman, Law Fellow, Ohio State University.

CERCLA and Emergency Planning and Community Right to Know Act (EPCRA) both require notification of release of any hazardous substances, including ammonia and hydrogen sulfide. EPA has the authority to investigate and remediate the release of any hazardous substance, but the original rule was designed for emergency situations, according to Scott Yager, environmental council with National Cattlemen's Beef Association (NCBA). The 2008 rule allowed for an exemption from CERCLA reporting requirements for releases to the air, from animal waste, at livestock facilities. It also exempted all livestock operations, except for CAFOs, from EPCRA reporting requirements.

“It’s presumed that the court will rule on the most recent request for an extension and/or issue the mandate at any time now. For the time being, we are encouraging producers NOT to report.” Jodie Anderson, executive director for South Dakota Cattleman’s Association

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The Court's decision could potentially have a huge effect on producers. Annual reporting requirements will now fall on producers for the release of hazardous substances from animal waste to the air under 1980s regulations.

"There is no official formula to calculate," Yager said, relating to the reportable quantity (RQ) limits.

The Court's decision was a big win for environmentalists, and may lead to more EPA challenges. The groups believed the 2008 ruling "ran afoul of the underlying statutes, and was therefore outside the EPA's delegated authority," the court order reads.

But for now, Jodie Anderson, Executive Director, with the South Dakota Cattleman's Association, says to hold tight on reporting.

"It's presumed that the court will rule on the most recent request for an extension and/or issue the mandate at any time now. For the time being, we are encouraging producers NOT to report," Anderson said.